Tuesday, April 03, 2018

Scalia the Justice: A Career of Contradictions (A Book Review)

By Eric Segall

Justice Antonin Scalia
was the most controversial judge of his generation. A superb writer and public
speaker, he relentlessly urged judges to adopt a strict textual and historical
approach to statutory and constitutional interpretation. His most famous
judicial opinions were his virulent dissents
where he often lambasted his own colleagues for imposing their personal values on the
American people instead of adhering to the rule of law. He routinely toured the
country ranting
to his audiences of law students, lawyers, and law professors that the Constitution
is “Dead, Dead, Dead!” Love him or hate, he was impossible to ignore.

One disclaimer about this
review. Those familiar with my own articles,
op-eds,
and blog posts
know that I am a vocal and long-time critic of Justice Scalia. Like Hasen, I am
also a progressive who bemoaned many of Scalia’s methods and opinions.

Hasen’s book is not a
biography. It includes little about Scalia’s personal life or his non-legal
interests. Instead, Hasen explores Scalia the Justice. It is a testament to the
late Justice that a book length survey of his decisions and off-the-Court
banter about the law could be so interesting and important. It is hard to imagine
such a book about any other justice’s career being so successful.

Hasen acknowledges that to many on the left
Scalia was an “unscrupulous foe” pretending to judge by politically neutral
principles but far more often than not reaching conservative results. For many
on the right, however, Scalia was a “hero, a rare principled Supreme Court
Justice who established and applied neutral principles to the most difficult
cases….” Although Hasen discusses Scalia
the polarizer, the main theme of the book, reflected in the title, is that
Scalia is best understood as a man, or maybe more accurately, a judge, of many
contradictions.

Scalia said he was an
originalist but often voted for non-originalist outcomes such as in affirmative
action, takings, and federalism cases, among many others. Scalia sometimes
followed precedent he did not like but also frequently voted to reverse
important cases, and he never explained what drove his ideas about following
precedent. Scalia wanted to “increase the legitimacy of judicial decision
making yet his attacks on his opponents may have undermined it.” Although
Scalia “was full of charm” and an “exemplar of personal collegiality among
[the] Justices,” he “asserted his positions …with unassailable conviction and
sharpness. The other side was not only wrong but grievously [wrong]. The other
Justices were there to impose their values on society … and only he could be
counted on to be neutral and never impose his values.”

Hasen explores Scalia’s
opinions and votes on almost all the hot button constitutional issues of our
day: abortion, gay rights, campaign finance reform, gun control, affirmative
action, and the rights of criminal defendants. To Hasen’s credit, he presents
Scalia’s opinions in enough detail, and with enough balance, to give those
opinions a fair shake. For example, Hasen is one of the leading election law
experts in the country, and vehemently opposes many of Scalia’s views on and
votes concerning campaign finance reform. Yet, he gives Scalia’s position its, due such as when he summarizes Scalia’s dissent in the now overturned Austin v. Michigan Chamber of
Commerce:

[Scalia] argued …that
limiting how much any person or entity spends in elections counts as
unconstitutional censorship. He argued that legislatures often pass campaign
laws to protect incumbents. He maintained that an incumbent politician who says he welcomes full and fair debate is no more to be trusted than the entrenched
monopolist who says he welcomes full and fair competition. He suggested that
the reason [the state] regulated the spending of business corporations but not
labor unions was because of the political power of labor unions…. Between 1990
and 2010 Scalia consistently argued that all limits on election spending
violated the first amendment ….

Hasen generally (though
there are exceptions) does not present his own critique of Scalia’s specific views.
This is not to say, however, that he does not incisively point out the
substantial internal contradictions in Scalia’s jurisprudence. For example,
Hasen argues that although Scalia “was extremely protective of the speech and
association rights of huge corporations and billionaires … he believed it was
perfectly fine for states … to hire, fire, promote and demote employees just
because of their partisan affiliation. If the Republican Governor of Illinois
wanted to fire a state janitor because he was registered as a Democrat [the
facts of an actual case], Scalia saw no first amendment violation.” Hasen also
explores how Scalia refused to review challenges to obvious partisan
gerrymandering but had no problem reviewing claims based on racial
gerrymandering, and yet he also struck down voting protections for people of
color and other minorities.

Hasen recounts that
Scalia once told his biographer Joan Biskupic that it was not the rich and powerful
whose kids would be hurt by affirmative action but the “Polish factory worker’s
kid who was going to be out of a job.” However, as Hasen suggests, and many experts
have argued,
Scalia’s steadfast view that the Constitution requires complete color blindness
is simply not supported by either the text or original understanding of the
Constitution. When a liberal law clerk provided him with scholarly accounts
concerning the original meaning of the Fourteenth Amendment, and how they
supported the validity of affirmative action, Scalia never engaged the clerk in
any discussion of those accounts, and not one of Scalia’s affirmative action
opinions that year “contained even a syllable of originalist argument.”

Hasen does give Scalia credit for many positive
attributes and decisions. “[F]ew could turn a phrase as [Scalia] could or so
thoroughly point out the logical flaws in the other side’s arguments.” He was
an “exceptionally effective writer.” Scalia was “remarkably pro-defendant, a
fact often pointed to by his supporters as evidence of the Justice’s
fair-mindedness and neutrality.” Scalia “made the other Supreme Court justices
work harder to clarify their reasoning,” and he “was an American patriot who
believed he was offering ideas to improve the American legal system and
democracy. He changed the way judges think and talk about statutes.”

I have one quarrel with
the book. Throughout much of his early career, Scalia advocated for clear easy
to apply legal rules instead of flexible standards. His famous law review article,
“The Rule of Law as a Law of Rules,” argued that predictability and consistency
were essential to judicial decision-making. It was on this axis that he and
Justice O’Connor battled on many occasions. Surprisingly, Hasen does not
discuss this aspect of Scalia’s jurisprudence.

There is one major critique
Hasen makes about Scalia’s career that is perhaps the most appropriate epilogue
to Justice Scalia’s legacy. Although Scalia often talked the talk of value-neutral judging, when it comes to Supreme Court decision-making, there simply
is no such thing. Hasen points out that “much of original understanding is in
the eye of the beholder. In cases involving vaguely worded constitutional terms
and deep ideological divisions, we should expect judicial decision making to be
influenced more by ideology and values than methodology.”

The problem was not that Scalia was “more ideologically driven than his fellow Justices.” Rather, Scalia “held himself out as better
than other justices because he applied allegedly neutral principles. He
promised that his brand of originalism and textualism would free judges from imposing
their views. At this point in history, the project appears to have failed.” Despite
Scalia’s best efforts across the decades, the Constitution, in the hands of
judges, all judges, is not “Dead, Dead, Dead,” but very much alive. That a
judge as smart and erudite as Justice Scalia never accepted that fact is the
greatest and saddest contradiction of his long career.

46 comments:

While he was alive, and in a nod to "Three Faces of Eve," I put together a draft LR article entitled, "The Two Faces of Scalia." The relentlessly rational originalist scholar became an inveterate hypocrite on the bench. Scalia's brand of originalism, consistently applied, would limit judicial discretion ... and ruin Eric Segall's wet dream of judocracy.

This saga actually starts with that [sarcasm, for Laura Shag-raham] radical RW judge Richard Arnold, who would have been nominated to SCOTUS by Bill Clinton, but for his poor health. In the opinion that launched 100 law review articles--Anastasoff--Judge Arnold (quoting Justice Story) wrote,

"The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority."

In his unassailable argument that nonprecedential decisions were unconstitutional, Arnold echoed the findings of constitutional scholar Scalia, who deftly summarized Anglo-American jurisprudence [in Law of Rules] in five incisive sentences:

Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no television in the afternoon, or no television in the evening, or even no television at all. But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed. The Equal Protection Clause epitomizes justice more than any other provision of the Constitution. And the trouble with the discretion-conferring approach to judicial law making is that it does not satisfy this sense of justice very well. When a case is accorded a different disposition from an earlier one, it is important, if the system of justice is to be respected, not only that the later case be different, but that it be seen to be so.

Justice Douglas adds, “[i]t is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., concurring). This axiom is an indispensable feature of Anglo-American jurisprudence, as Lord Chief Justice Goddard adds: “Time and again this court has said that justice must not only be done but must manifestly be seen to be done." R. v. Justices of Bodmin, [1947] 1 K.B. 321, 325.

These [adding Bork/Berger] are the philosophical foundations of originalism. [cont.]

First: All decisions must be fairly traceable to the Constitution, as written by the Framers or Amenders.

Second: "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." [Marbury v. Madison] This is where our judiciary commits felonies on an industrial scale, interring wide swaths of the Framers' COTUS. The 7Am and 11Am are dead letters, as is the Good Behavior Clause. Alden v. Maine and and Seminole Tribe stand as monuments to judocracy.

(One wonders why Segall protests--the judges are doing what he thinks they should.)

Third, COTUS is a treaty between 13 co-sovereigns; the doctrine of pacta sunt servanda and contract law rules control. Accordingly, third-party beneficiaries (the citizens) may enforce its provisions. Thomas Jefferson observed that a constitution is supposed to provide remedies for all injuries accruing from unlawful invasions of rights, so the people are never required to resort to rebellion in order to secure them. Thomas Jefferson, Notes on the State of Virginia 255 (1785) (Query 13). Ergo, if a particular interpretation of law leaves the citizen bereft of all remedy for wrongful invasion of a vested legal right, thereby compelling him to resort to rebellion to secure it, it is presumptively wrong. Marbury v. Madison, 5 U.S. at 163.

Fourth, the CL rules CJ Roberts describes as "precedent on precedent" control, on the strength of their own merit. By way of example, a judge has always been obliged to “make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act." Heydon's Case [1584] 76 Eng. Rep. 637 (Exch.). The intent of the Framers, as determined from the text and proper context, is to drive the decision.

Fifth, an originalist must put on his big boy pants, and accept decisions that don't go your way. Scalia wrote: "Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences."

This is where Justice Scalia betrayed constitutional scholar Scalia. Best line: He was "as faithful to his originalism as Tiger was to ex-wife Elin." Both Barnett and Segall agree on this point. A florid example was Hobby Lobby, where he repudiated his earlier and ruthlessly originalist decision in Employment Dept. v. Smith. The difference was that the parties in Smith were First Nations members who just wanted to practice their religion, whereas the plaintiffs in Hobby Lobby were Evangelicals. Being Catholic, he was sympathetic to their claim. [cont.]

So what we get from John are "The Multi-Faces of John Barron." (Could be his comments at this Blog are excerpts from his draft LR article, an alternate form of self publishing to avoid LR vetting? Maybe the Originalism Blog will post on John's daft [sic].)

John keeps pushing his "Fast Food Originalism," featuring the "Bork/Berger," "mit pickle in the middle and the mustard on top, just the way way you like 'em and they're all red hot."

Over at Balkinization Calvin Teerbeek has an interesting post on post-Scalia publications, including Hasan's.

Hasen does give Scalia credit for many positive attributes and decisions. “[F]ew could turn a phrase as [Scalia] could or so thoroughly point out the logical flaws in the other side’s arguments.” He was an “exceptionally effective writer.” Scalia was “remarkably pro-defendant, a fact often pointed to by his supporters as evidence of the Justice’s fair-mindedness and neutrality.”

Up to a point. I do think his approach is better, e.g., than Kennedy (a mixed bag open to his own unfair criticisms) who tends to basically ignore the dissent.

Scalia repeatedly misunderstood or at least did not adequately address the other side, mixing in (a red flag) sarcasm and disdain instead of a more nuanced critique. I respect those who strongly disagree but manage to be more balanced. Sarcasm and disdain can be fun, but I can see less of that on both sides in court opinions. An outsider probably is repeatedly surprised at the level of vitriol in Supreme Court decisions from some writers.

As to pro-defendant, again, up to a point. His jurisprudence helped the defendant in various cases, including his view on the Confrontation Clause. But, in other cases, not so much. Those who appeal to him as more pro-defendant as someone like Breyer, e.g., because Breyer in various cases is more supportive of the government is being selective.

On the whole, I found Scalia a bad influence though one Scalia on the Court is probably fine. The problem to me is that he is put out as a model, which I guess unsurprising in these times (going back to the 1980s here).

Finally, I again find him inconsistent to an annoying degree. I think his majority opinion in Oregon v. Smith went too far, e.g., but respect its basic concerns, including the ability of the courts to weigh religious doctrine and secular law. And, he was loyal to this in the Boerne case, which involved a church. But, where was this concern in later RFRA cases? His Establishment Clause jurisprudence is simply underinclusive but this is more of a tragedy, since you saw some potential for more.

Finally, process matters to an originalist and especially, at the appellate level. As the Wisconsin Supreme Court wrote,

An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid. [Wisconsin v. Allen, No. 2010-WI-10 (Wis. 2010), slip op. at ¶ 79]

This is where our farcical excuse for courts have failed most miserably, and Scalia is not the only unrepentant sinner. The legendary Karl Llewellyn observed that judges only to follow “binding” precedent when it takes them where they wanted to go in the first place, and often "manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach." Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) 133.

This indictment was not merely handed down by academicians. Judge Laurence Silberman of the D.C. Court of Appeals confessed that he was “in despair” about the United States Supreme Court, noting that every one of the Justices “is guilty, to one degree or another, of violating the two most basic rules of restrained judicial behavior: ruling only on questions presented by the case at hand, and interpreting precedents honestly.” Benjamin Wittes, “Without Precedent,” Atlantic Monthly, Sept. 2005. Judge William Fletcher of the Ninth Circuit recently blasted the Court for distorting the facts of a case in the course of reversing an opinion he had written: "Politicians are politicians," he said. "We are accustomed to their half-truths and their untruths … But we are here dealing with a court. If a court will systematically change the meaning of words so as to distort what are the actual facts of the case, our judicial system is in trouble." Id.

Tom DeLay called it “judicial terrorism.” New Yorkers had enough courage to call a spade a spade:

"Tyrants come in more varieties than Baskin-Robbins has flavors. The ultimate protection a free society has against a tyrant, is a judicial system that acts as the last barrier to a tyrant’s will. Therefore, it is immeasurably worse when the tyrant is the judge himself. … Just as there is no small death, there is no small tyranny.

Respondent [a judge] acted in tyrannical fashion. His will was the law, and to the degree that his law conflicted with the actual one, he was above the law."

To Segall, judicial tyranny is not a bug in his Living Constitution, but a feature. When Posner declares--the words of the statute be damned!--that "sex" somehow means "sexual orientation" [in Hively], he rejoices. But while an originalist may believe that Posner reached the "right" decision, he is forced to maintain that making that call is above a judge's pay grade.

But as Solum observes, the main problem with originalism is originalists:

"Debates over originalism have taken a number of wrong turns, and on more than one occasion, originalists themselves have been behind the wheel. One of these wrong turns involves affirming originalism for the wrong reasons. Some originalists seem to support originalism because they believe it compels judges to reach results they find normatively attractive. Such originalists may be especially to the idea that “original expected applications” directly determine the meaning of the constitution. This involves a fundamental mistake. The real attraction of originalism is that it aims to get the meaning right, and not that it just so happens to get the right meaning. The normative foundation of originalism is fidelity to law, and not fidelity to particular outcomes.

Antioriginalists are the ones behind the wheel when a second wrong turn is taken. Here is how they get lost. An antioriginalist might reason as follows. The motivation for some originalists is find theoretical support for their constitutional agenda—for example, they may be in favor of overruling Roe v. Wade or against the expansion of Congress’s Commerce Clause Power. Therefore, the essence of originalism, the theory, just is the constitutional agenda of these originalists. This wrong turn involves a simple fallacy—equating the psychology motivation for a theory with the content of the theory.

To put it bluntly, a lot of nominal originalists really aren't--including Scalia.

With that foundation laid, we turn to the famous "Duck" case. Most Americans had the good sense to roll their eyes in bemusement when they heard of his public claim that he hadn’t received a bribe from Dick Cheney, even though he admitted facts which would justify a bribery prosecution. Cheney v. United States Ct. of App. for the District of Columbia, 541 U.S. 913, 914 (2004) (Scalia, J., memo) (free trip aboard a private jet for family members). But yet, he justified his decision to sit in a case deciding the interests of his good friend and generous patron despite that admission, claiming that

…while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer. [Id. at 916]

Even though 28 U.S.C. § 455(a) requires a “justice” to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and inferior court judges routinely recuse themselves in matters when they are personal friends of parties or even attorneys in a matter, he chose to sit in the Cheney case, invoking the Court’s de facto Rule of Necessity, which provides:

Even one unnecessary recusal impairs the functioning of the Court. … In this Court, where the absence of one Justice cannot be made up by another, needless recusal deprives litigants of the nine Justices TO WHICH THEY ARE ENTITLED, produces the possibility of an even division on the merits of the case, and has a distorting effect upon the certiorari process, requiring the petitioner to obtain (under our current practice) four votes out of eight instead of four out of nine.

William H. Rehnquist, et al., Statement of Recusal Policy of the Supreme Court of the United States, Nov. 1, 1993, at 1-2 (emphasis added). As that justification was then endorsed by a quorum of the Court, it is hard to argue that he acted improperly.

Plaintiff with standing (as conceded by the lower courts) files an official capacity action challenging the constitutionality of discretionary cert, as created by The Judges' Bill back in 1923. In giggle-worthy rulings for the ages, the lower courts said that they had no jurisdiction, as no mere mortal man could challenge the Gods on Mount Olympus a/k/a One First Street, and that they had no authority to tell Their Majesties what to do. Uh, never mind that a federal statute, 28 U.S.C. § 1361, expressly granted them that power, and "[t]he accustomed office of a writ of mandamus, when directed to a judicial officer, is to compel an exercise of existing jurisdiction, but not to control his decision." Ex parte Roe, 234 U.S. 70, 72 (1914). Never mind that, if no federal district court has jurisdiction to answer the question, the only alternative is Judge Judy. Here was a simple federal question they had a statutory obligation to decide, 28 U.S.C. § 1331, and willfully refused to decide.

The decision was appealed to SCOTUS and then, things got really weird. Even though it was an official capacity action, the Court punted en masse. Eight Justices declared, en masse, that they were too corrupted by personal ambition to decide the appeal.

The implications of their decision are staggering. First and foremost, it shatters two centuries of precedent holding that Justices had to sit in official capacity actions. See Cheney, supra. Second, as it was a joint recusal, it sets precedent. Third, it casts aspersions on every judicial immunity decision ever rendered by this Court, since they were all coram non judice. Finally, it calls the ALCOA doctrine into disrepute, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965), restoring the Rule of Necessity that judges relied on when hearing a case had benefited them personally. Evans v. Gore, 253 U.S. 245, 247-48 (1920).

Constitutional Scholar Antonin Scalia wrote that "When a case is accorded a different disposition from an earlier one, it is important, if the system of justice is to be respected, not only that the later case be different, but that it be seen to be so." But how was the case at bar different--in any material respect--from the Cheney case? Both were official capacity actions, challenging the outer bounds of public officials' freedom of action.

As was often the case, Justice Scalia forgot who Constitutional Scholar Scalia was. And if they were true originalists, Scalia and Thomas would have at least read the statute, and filed an appropriate dissent.

Scalia “held himself out as better than other justices because he applied allegedly neutral principles. He promised that his brand of originalism and textualism would free judges from imposing their views." But as he obliquely admitted himself, originalism has the virtue of never having been tried. "[N]o government official is "tempted" to place restraints upon his own freedom of action, which is why Lord Act on did not say "Power tends to purify." The Court's temptation is in the quite opposite and more natural direction—towards systematically eliminating checks upon its own power; and it succumbs."

The Supreme Court declared that us children of a lesser god had better do what Justice Marshall often had to: wrap our constitutional rights in cellophane, tuck them in our hip pocket, and catch the next train. Owen Fiss, A Tribute To Justice Marshall, 105 Harv. L. Rev. 48, 53 (1991). We can no more expect our courts to enforce them than it would those of the black man in segregated Baltimore Marshall spoke of, who had no real hope of a fair trial. Kagan, For Justice Marshall at 1127. It is hard to imagine that maintaining our current two-tiered system of jurisprudence—where judicial accountability is notable only by its absence—could possibly be in the public interest.

I'm opposed to the death penalty on prudential grounds--our system is too f'd up for it to be trusted--but I can't assert that it is unconstitutional.

We are constitutionally entitled to a fair trial, not a perfect one. And "[i]f the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual, and unhistorical contradictions within “the Court’s Eighth Amendment jurisprudence” should not prevent them." [Scalia]

Judges have no constitutional authority to write law under the guise of interpreting it. Full stop. Even when I don't like the outcome.

John Barron is perhaps reflecting his self-felating in the manner suggested by the Mooch of Steve Bannon. I understand this trio is barred from the White House.

By the Bybee [expletives deleted, despite Gina] John, was slavery a "constitutional evil" before the Civil War As? I assume an originalist would say "Definitely not!"

If "the main problem with originalism is originalists," does it take a "good" originalist to stop a "bad" originalist, including by means of the 2nd A (Heller, 2008, 5-4)? So far John has criticized so many "branded" originalists, perhaps all originalists are out of step except for John Barron, the judge, jury and executioner of originalism. I note that John took the bait and repeated his "Fast Food Originalism," but John did not pick up on its "Bork/Berger" menu, suggesting that perhaps John has reverted to veganism.

I'm having difficulty trying to imagine John Barron as a centrist judge. But John has picked up on George W.'s "decider" role, at least when it comes to originalism. When will the Originalism Blog and Larry Solum's Legal Theory bow to John? But John Barron's "Fixation" seems at odds with Larry's "Fixation." Is it time to call the vet for a quick fix?

Segall: "Like Hasen, I am also a progressive who bemoaned many of Scalia’s methods and opinions."

While I am progressive on most issues, I openly bemoan Segall's "Bobby Knight Living Constitutionalism": The judge is going to have his way with your rights anyway; you may as well lay back and try to enjoy it.

Segall: "Despite Scalia’s best efforts across the decades, the Constitution, in the hands of judges, all judges, is not “Dead, Dead, Dead,” but very much alive."

Richard Primus noted that you can't beat something with nothing, and neither Segall nor his fellow-travelers have ever been able to address the rash of insuperable flaws in Living Constitution Theory. Rather by definition, all judge-made "law" is ad hoc and ex post facto. You can't plan your affairs to account for it, and the only "rights" you have are tenancies-at-will in mere liberties. If you dare to exercise your right to free speech in a way a judge might not approve of under the LC, you do so at your peril.

Scalia understood that originalism is far superior to LC theory, and by virtue of his position and intellect, moved the ball down the field. Originalism meets the standard of consent, as espoused by Lincoln: "[N]o man is good enough to govern another man, without the other’s consent." Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. No sane human being would ever willingly consent to live under the Living Constitution, and the Framers' generation expressed their view for all to see. John Dickenson and Thomas Jefferson, Declaration of Causes and Necessity for Taking Up Arms, Continental Congress (U.S.), Jul. 6, 1775.

Unlike the LC, originalism also passes the reliance test. Liberty can find “no refuge in a jurisprudence of doubt,” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992), as it is hard to imagine any provision of the Bill of Rights surviving a regime where our law is not substantially certain, capable of ready determination, and amenable to reasonable reliance by the average citizen. Moragne. By way of example, it renders the First Amendment nugatory, for when “one must guess what conduct or utterances may lose him his position, one necessarily will steer far wider of the unlawful zone,” Speiser v. Randall, 357 U.S. 513, 526 (1958) (internal quotations omitted), as “the value of a sword of Damocles is that it hangs -- not that it drops.” Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).

Segall: "That a judge as smart and erudite as Justice Scalia never accepted that fact is the greatest and saddest contradiction of his long career."

The really smart judges (e.g., Posner, Kozinski, Miner, Arnold) "got it." Judges "are constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent," a process he colorfully characterized as "fig-leafing." Posner, How Judges Think at 350. Posner candidly admits that our judges are liars, "parrot[ing] an official line about the judicial process (how rule-bound it is) … though it does not describe their actual practice." Id. at 2. Judges "are not moral or intellectual giants," id. at 3, but all too human. And they do what humans do: act in their own self-interest.

Have you finished Solum's LR article yet? See my quotation above. He has it dead-solid perfect. Whereas I argue from history, Solum argues from philosophy; we get to the same place.

Shag: "I'm having difficulty trying to imagine John Barron as a centrist judge."

As has been said, I would be an originalist judge. Abortion? SSM? Protected, for reasons already stated. DACA? Death penalty? Hands tied by COTUS. Unlike Scalia, I'd leave my personal preferences in chambers.

Shag: "John, was slavery a "constitutional evil" before the Civil War"

You probably predate Speluncean Explorers. As Jefferson averred in his DoI draft, it was an unspeakable moral evil--but it was "baked into" COTUS. The flaw lay there, and it was incumbent upon the citizenry to end it.

But yet, you heartily endorse another form of slavery.

"The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves." [Madison.]

John Barron does not provide a date for the Madison quote near the close of John's 2:38 PM comment. The date is relevant. If the quote related to the 1787, isn't there a contradiction as the 1787 Constitution protected slavery. Or was this from a later date as Madison's views evolved? There are significant differences between the kind of slavery that existed in the Colonies/States during Madison's lifetime and what Madison alluded to in his quote. Madison as a slaveowner should have known this. (Query: Does Madison's quote apply to "natural law" that some originalists today adhere to?_

By the Bybee [expletives deleted, despite Gina] John, in an early draft of the DOI, Jefferson included a charge against King George for the latter's role in slavery that encompassed the Colonies/New World. Because of pressure from the Slave colonies, this charge was eliminated in the final version, apparently a compromise on principle because it effected principal.

Apparently to John's "Fast Food Originalism" (hold the pickle and mustard?), whatever is provided in the Constitution, until changed, is not a "constitutional evil.

Solum's "main problem" with originalism is not such a unique observation. Genesis reminds us that the main problem with humanity is humans. John, QED.

While "March Madness" concluded yesterday, John continues his version:

"While I am progressive on most issues, I openly bemoan Segall's 'Bobby Knight Living Constitutionalism': The judge is going to have his way with your rights anyway; you may as well lay back and try to enjoy it."

Me: I openly bemoan Segall's 'Bobby Knight Living Constitutionalism': The judge is going to have his way with your rights anyway; you may as well lay back and try to enjoy it."

Shag: Hyperbolic foul.

------

How so, Compadre?

Real case. P sues State Supreme Court Justices A-F in federal court, relying on rationale that was found valid in a sister circuit. Judge X (who was later thrown off the bench for taking bribes) dismissed the case, in face of "binding" SCOTUS precedent. Circuit rubber-stamps the decision below, and Scalia is too busy giving speeches in Auckland to consider the cert petition.

P files pendent action in state court. Despite the fact that state district courts are courts of general jurisdiction, the state DC Judge invents a state-law Rooker-Feldman rule. Logically impossible, but these are judges.

P appeals. Despite a statute expressly investing them with power to decide the appeal, they refuse to decide it, leaving it to the state supreme court.

Both a state statute and 400 years of binding precedent (e.g., Bonham's Case, Tumey v. Ohio, Murchison) expressly forbid judges from deciding their own appeals--importantly, they would lose jurisdiction, and the matter would be coram non judice--and a statute expressly provides for non-conflicted judges where there is a conflict.

What happens? They decide the appeal anyway. And you don't need slides to know how they ruled.

How outrageous is that? Colorado's supreme court took a stab at it:

The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. … We are equally certain that when … a judge is prejudiced or otherwise incompetent to hear or try a cause, but nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides." [People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (1915)]

What are P's remedies, Shag? Eric? Michael?

Under the Framers' COTUS, P is loaded for bear. S/he has an absolute right to certiorari review, as this is that far over the top. Second, as it was a patent violation of P's civil rights, s/he would be entitled to initiate a private criminal prosecution under 18 U.S.C. §§ 241-42 -- even if the local AUSA demurs. And as the offending judges acted after being statutorily divested of personal jurisdiction, they could be sued in tort, even under Brigham. And the State has liability in respondeat superior.

Under Segall's 'Bobby Knight Living Constitutionalism', where the judge is going to have his way with your rights anyway; you might as well lay back and try to enjoy it, P has NO rights. None. Cert is available in theory, but SCOTUS doesn't DO error-correction, and they won't take a case if Ted Olson isn't arguing it. The courts have taken away the fundamental right to initiate private prosecution. And the judge-made "law" of judicial and sovereign immunity have eliminated all remedies in tort.

John Barron is now engaging in "Jump Ball Originalism," dribbling profusely. Just maybe John may turn out to be the missing link to the discovery of the Holy Grail of Constitutional Interpretation/Construction, a hallelujah moment for this faith driven originalism movement. The judiciary will become pure and the rule of law applied as ordained by the original public meaning Fixation, perhaps perfected by means of corpus lingus, making judges and lawyers extraneous. And we would be indebted for this to John Barron, so perfect he's 'rhoidless.

Senility appears to be hitting Shag particularly hard this morning. Even trying to make sense of his endless stream of gibberish would be a Sisyphean task. But I do have a new target this morning: the re[ally]doubtable Ed Whelan.

In a two-part article in Bill Buckley's Irrational Review, Whelan takes aim at "Richard Hasen’s [putative] Jumble of Confusions." Therein, he conflates Scalianism (another form of outcome-driven jurisprudence) with originalism. He whines that Hasen's critique, "is badly flawed," starting "with the three lead items in Hasen’s list of Scalia’s supposed “contradictions.”

Hasen's first charge was that Scalia's remarks were "delegitimizing" other judges, which is Richard Posner's lane.

Whelan: “There is no contradiction at all here. Scalia believed that the Court earns its legitimacy by soundly exercising reasoned judgment — and that it undermines its legitimacy by acting in an unprincipled manner. So it’s entirely consistent for him to discredit, or delegitimize, bad judging.”

The problem, of course, is that Scalia did an awful lot of REALLY bad judging. He who is without sin may cast the first stone, and Scalia lived in a jurisprudential Crystal Cathedral—being more notoriously guilty than just about anyone.

One of the most florid examples of Scalia using COTUS as toilet paper was Alden v. Maine. Both the history and text of the 11Am, read in pari materia with Article III, made it clear that a lowly citizen could sue his state government in federal court. John Paul Stevens, “Two Questions About Justice,” 2003 Ill. L. Rev. 821. And whereas Constitutional Scholar Antonin Scalia correctly informed us that the Framers knew nothing of domestic sovereign immunity, Antonin Scalia, Historical Anomalies in Administrative Law, Supreme Court Hist. Soc’y. 103 (1985) (thank you, Jay Bybee!), Justice Scalia found that he liked it just fine. Alden v. Maine, 527 U.S. 706 (1999). Why? More work would have messed up his public speaking schedule.

In Alden, Kennedy wrote one of the most bizarre passages I have ever seen in a published decision:

“The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land." [Id. at 755.]

So, why IS Scalia responsible for this bloody judicial abortion? He was the fifth vote.

John Barron's efforts to present himself as a progressive might suggest that John is "one-upping" Jack Balkin's "Living Originalism" with apparently John's "Progressive Originalism." John's "April Madness" recalls the old joke: "Once a Mason, alway a Mason. But once a Knight is not enough." John's merely employing the Donald Trump repetition technique.

Poor Shag! "Bobby Knight Living Constitutionalism" hit him where it hurt.

Getting back to Whelan's critique of Hasen's book....

Hasen (per Whelan): "Scalia “offered jurisprudential theories to guide all cases, yet those doctrines were flexible enough to allow him, in most of the cases most important to him, to deliver opinions consistent with his ideology.”

Whelan offers this creative dodge: “The elementary point that he misses is that “in most of the cases” that he would regard as “most important to” Scalia — from abortion to homosexuality to the death penalty — Scalia did not read the Constitution to impose his supposed preferences but instead held merely that the Constitution leaves those matters to the democratic processes for decision and revision.”

Which is, in itself, a form of constitutional eisegesis. The individual has a portfolio of natural rights, which are either retained or ceded to the government. As Madison explained to Congress, 1 Annals 456 (1789), if a right is not expressly ceded, it is retained. That includes the right to marry (Loving, Obergefell), the right to send a kid to a Catholic school (Pierce), the right not to remove your hat in deference to ‘superior authority’ (the trial of William Penn), and the right to an abortion (Roe).

Whelan and Scalia have taken one of Larry Solum’s ”wrong turns.” They HATES abortion and gays, Gollum! They are theocrats with a Thomist view of natural rights, and their perversion of originalism reflects it. Whelan even goes so far as to claim that the police power translates into the power to ban abortion, while neglecting to explain how such a ban would contribute to public order—the only ostensible purpose of the police power.

While the Bork/Berger critique of the Bobby Knight Living Constitution (the judge is going to have his way with your rights, so you might as well lay back and try to enjoy it) was devastating, Bork’s assertion that the Ninth Amendment was “an inkblot” was plainly ahistorical and outcome-driven.

Scalianism suffers from the same fatal flaw as the Bobby Knight LC: It enables judges to write law under the guise of "interpreting" it. It suffers from the same conceptual flaw as Primus's Common Law Constitution: COTUS is "the supreme Law of the Land," superseding CL that conflicts with it. Accept no substitutes.

Hasen (per Whelan): "Scalia “was an ‘originalist’ who believed constitutional provisions should be interpreted in line with their public meaning at the time of enactment, except when he wasn’t. He sometimes followed what he considered to be errant precedent because the law was ‘settled,’ and at other times he simply ignored originalist analysis altogether.”

This is painfully true. Scalia was like Bob in the Church of the SubGenius: "I don't have to practice what I preach because I'm not the kind of person I'm preaching to!"

But she-- er, I mean, HE persisted:

Whelan: “There is no “contradiction” between Scalia’s originalism and his respect for settled precedent, as Scalia’s stated methodology incorporates them both. As Scalia wrote in A Matter of Interpretation, “Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.” There is plenty of room to argue, as Justice Thomas does, that Scalia is too accepting of mistaken precedent that is settled, or to contend that the whole question of whether precedent is “settled” is too indeterminate to be meaningful. But it makes no sense to suggest, as Hasen does, that an interpretive methodology is somehow contradictory if it combines originalism with respect for settled precedent.”

Whelan can call it whatever he damn well pleases, but it ain’t originalism. To the originalist, if a decision can’t be harmonized with COTUS, it is not a valid precedent. Or to put it another way, stare decisis is not and can’t be an inexorable command.

For Scalia, originalism was like a hooker on a street-corner: He would enjoy relations with her when it served his purposes, but he would not take her home.

…he is stating an undeniable and empirical fact, which both originalists like Barnett and virulent opponents like Segall accurately note.

(Shaggy's right in one respect: It may take a good originalist to get rid of a bad one. Why I am any less qualified than a Barnett, a Whelan, or a Segall to opine on the topic is not abundantly apparent. I have earned more university degrees than Larry Tribe or Alan Dershowitz. What makes them "experts"?)

You seem to be stuck on infinite loop. Nothing of substance. By contrast, my entries today address Ed Whelan's critique of Hasen's book, which is indisputably on-topic. You contribute nothing and apparently, cannot be expected to.

Can we expect John Barron to publish his CV and perhaps provide the link, it such exists, to John's "daft [sic] LR article." I have assumed all along that "LR" translates into "law review" but maybe it's "loony rant." But I for one do not think John is any less qualified than branded originalists. Renowned uber originalist John McGinnis in the 1990s proposed Scalia as a Republican candidate for president for 2000. On a Scalia of 1-10, 10 being a Mt. Etna eruption, that was a 15.

Professor Segall's article addresses Lawrence v. Texas. How does an originalist get to that decision? It's not that hard.

I would submit that the proper originalist reading of the 9/10Am is the one Madison gave to it: Rights were retained by the people unless ceded. That statement begs the natural question: Where did the people cede the natural right to copulate with other consenting adults to the government?

What about the commerce power? States can prohibit prostitution, but that involves the exchange of money. Didn't happen there.

What about the police power? States can prohibit copulation in the park, but not in the privacy of one's home. Didn't happen there, either.

COTUS has been called "the great power of attorney." But it is both express and limited, as are its state counterparts. What the States have no authority to do, they cannot do. Full stop. Regardless of how you feel about buggery--Jefferson thought it should have been a capital offense--the COTUS the Framers bequeathed to us doesn't empower the majority to outlaw it.

Those who can't do, teach--and often, at fourth-tier law schools. Many lawprofs haven't seen the inside of a courtroom in 20 years. Their "legal engagement" appears limited to doing what appellate attorneys do on a daily basis. Adjuncts have more cred.

At least in the legal arena, arguments stand or fall on their own merits. And to be blunt, your 'Bobby Knight Living Constitutionalism' (where the judge is going to have his way with your rights anyway; you might as well lay back and try to enjoy it) fails on a multitude of levels.

Why does originalism prevail? The strongest argument for it is that of public consent. As Thomas Paine wrote in Common Sense, "For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other." Even Segall won't admit outright that your LC merely replaces King George with King Judge, as he knows that no one would buy it.

The ‘short tour’ of American jurisprudence over the past two centuries is the relentless accretion of power by corrupt and self-serving judges, in a subterfuge Judge Bork described as a slow-moving and genteel coup d’êtat. Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003). And though he was writing about his State’s legislature, what Alexander Hamilton said in his Letters from Phocion applies to judges, as

their rights and powers are [defined in the Constitution]; if they exceed them it is a treasonable usurpation upon the power and majesty of the people, and by the same rule that they may take away from a single individual the rights he claims under the Constitution, they may erect themselves into perpetual dictators.

As a general historical rule, whenever a judge gets the chance, it is substantially certain that he will place his proverbial fingers on the scales of justice in such a way as to: (1) expand the powers of the judiciary, (2) mollify potential opponents, and/or (3) enhance his personal legacy. Two hundred years of this noxious practice has left us with a constitution that the Framers did not bequeath to us—-or, for that matter, would even recognize as the product of their genius.

The most prominent case of judges voting their legacies is Bush v. Gore. But under the Bobby Knight LC, you have no principled ground upon which to complain.

It's the old tale about the man running from a bear chasing him. "I don't have to outrun the bear. All I have to do is outrun you." Originalism is so superior to your Bobby Knight LC on so many levels that it is impossible to argue credibly for the latter.

Once again John Barron resorts to "Tower of Babble [sic] Originalism" that with all his criticisms of branded originalists John Barron still claims that originalism prevails. Where? SCOTUS? The Originalism Blog? The Legal Theory Blog? John Barron is the self-proclaimed "good originalist" who can get rid of the "bad originalists." How's that working? John Barron's "April Madness" continues.

Perhaps John Barron will start to recycle quotes from earlier threads of Plutarch, St. Augustine and John's mysterious Austinians. I think that John's Bork/Berger diet is giving him originalism heartburn.

By the Bybee [expletives deleted, despite Gina] John, when you disclose your VC will it include your successes in the legal arena against the corrupt judiciary you continue to describe?

As a predictive theory? Of course not! Segall's 'Bobby Knight Living Constitutionalism', where the judge is going to have his way with your rights anyway, so you might as well lay back and try to enjoy it, is the winner, hands'-down.

All I ask is that you don't call it "law," and stop pretending that you can find it in COTUS. As Judge Bork averred, our judiciary has engineered a coup d’êtat.

Bork's "Original Intent Originalism" was buried by subsequent varieties of originalism fairly early on. It's kind of late for its Resurrection, despite the ..efforts of Joh Barron and the uber originalists John McGinnis and Michael Rappaport.

...for obvious reasons. But that still doesn't save Eric Segall's 'Bobby Knight Living Constitutionalism'--where the judge is going to have his way with your rights anyway, so you might as well lay back and try to enjoy it.

Primus's variant (the Common Law Constitution) suffers from the same conceptual flaws, and more. According to COTUS, both it, "and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." Wherever the CL conflicts w/statutory law, the CL must yield. No exceptions.

While I would love to have a convo regarding the competing theories, their merits, and their demerits, you have become the Donald Trump of ConLaw. No substance, & no defense of your position. Just endless screams of "Bigly!"

I'm not so sure Larry's pleased with John Barron's Fixation on John's claimed evils of the judiciary even though John has more earned degrees than Tribe and the Dersh. Perhaps John Bannon has found his place here to publish his "daft [sic] LR article." But a reminder at:

Shag: "I'm not so sure Larry's pleased with John Barron's Fixation on John's claimed evils of the judiciary"

Happy to debate anyone--Dorf (who owns the collective treason of CA-9), Segall (who is stuck with Posner), Solum (never talked with him on it--on the point. Loaded for bear. Facts are pesky things.

While debating Whelan, Segall could have pointed out how Scalia parlayed his position and the celebrity attending it into a way to travel the world in resplendent fashion on other people’s money: Berlin. Warsaw. Rome. London. Zurich. Lisbon. Jerusalem. Istanbul. Tokyo. Copenhagen. Reykjavik. Dublin. Lima. Innsbruck. Melbourne. See Antonin Scalia, Form AO-10 (Financial Disclosure Report for Calendar Years 2003-2009), as reprinted at http://www.judicialwatch.org/judge/scaliaantonin. Nor did he neglect North American vacation spots: Banff. Fairbanks. Beaver Creek. Indian Wells. Jackson Hole. Honolulu. Id. And even while the Court was in session, and we were paying his salary, he took a nine-day vacation halfway around the world. Antonin Scalia, Form AO-10 (for Calendar Year 2004) at 4 (attending conference in Auckland, NZ from Oct. 19-27, 2004).

Nice part-time work, if you can get it.

It is a marvelous scheme: Get one of your corporate sponsors—the Kochs are always out to buy influence, and it does appear that they have bought Justice Thomas—to invite you to give a speech in an exotic locale, and you get to stay the week, with the first-class ticket paid for. And of course, if Scalia weren’t one of the Nine, Bryan Garner wouldn’t have written the book on the art of persuading judges for him, and he wouldn’t be collecting six figures in royalties from that venture.

Shag: "CV or not CV," there is no answer.

Not going to decloak for a senile old coot who is channeling his inner Donald Trump when he is not drooling creamed corn down his chin. You're not worth it, Chuckles.

Don't you mean, David Hogg's fixation on school shootings? Or Robert Wilkins, whining about being stopped when driving while black? Or Philando Castile, getting whacked by a cop while he sat passively in his car?

If it doesn't happen to you, it's not a problem. Thank you, Dana Loesch.